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RESOLUTION No. 04/2004/NQ-HDTP OF THE SUPREME PEOPLE'S COURT GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF PART THREE "FIRST-INSTANCE TRIAL" OF THE 2003 CRIMINAL PROCEDURE CODE

THE JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT

Pursuant to the Law on Organization of the People's Courts;

To correctly and uniformly implement Part Three "First-Instance Trial" of the 2003 Criminal Procedure Code (hereinafter abbreviated to the CPC);

After consulting with the Chairman of the Supreme People's Procuracy and the Minister of Justice,

RESOLVES:

I. REGARDING CHAPTER XVII "TRIAL PREPARATION" OF THE CPC

1. Regarding Article 176 of the CPC

1.1. Reception and registration of case files

When receiving case files transferred by the Procuracies, the file recipients must compare the lists of documents with the documents included in the case files to see if they are adequate or not; check to see whether the indictments have been handed to the accused strictly according to the provisions in Paragraph 3, Clause 1, Article 166 of the CPC or not and handle them as follows:

a/ If the documents in the case files are inadequate as compared with the lists of documents or the indictments have not yet been handed to the accused, they will decline to receive the case files for they fail to comply with the provisions of the CPC.

b/ If the documents in the case files are adequate as compared with the lists of documents and the indictments have been already handed to the accused, they receive the case files and record them in the case file registration books.

After the case files are registered, the court president shall immediately assign a judge to preside over the court session.

1.2. Trial preparation time limits

Article 176 of the CPC prescribes the trial preparation time limits; therefore, the time limits prescribed in this Article shall all be calculated into the trial preparation time limits. Depending on every specific case, the trial preparation time limit shall be calculated as follows:

1.2.1. In cases where the judges assigned to preside over the court sessions issue decisions to bring the cases to trial

a/ If not being extended, the trial preparation time limit shall count from the date the judges assigned to preside over the court sessions receive the case files, being at most:

a.1. Forty five days for less serious offenses;

a.2. Two months for serious offenses;

a.3. Two months and fifteen days for very serious offenses;

a.4. Three months and fifteen days for particularly serious offenses.

b/ If being extended, the trial preparation time limits shall count from the date the judges assigned to preside over the court sessions receive the case files, being at most:

b.1. Two months for less serious offenses;

b.2. Two months and fifteen days for serious offenses;

b.3. Three months and fifteen days for very serious offenses;

b.4. Four months and fifteen days for particularly serious offenses.

c/ For the cases guided at Points a and b above, if court sessions cannot be opened within fifteen days counting from the date of issuance of the decisions to bring the cases to trial for plausible reasons, the trial preparation time limit for each case shall be added with fifteen days at most.

1.2.2. For cases where the judges assigned to preside over the court sessions issue decisions to return the files for additional investigation, decisions to stop or suspend the cases

In cases where the judges assigned to preside over the court sessions issue decisions to return the files for additional investigation, decisions to stop or suspend the cases, the trial preparation time limits shall terminate on the dates of issuance of such decisions. For case of issuance of decisions to suspend the cases, the trial preparation time limits shall be recalculated from the date the courts resume the settlement of the cases when the reasons for suspension no longer exist.

1.3. Regarding extension of the trial preparation time limits

When the time limit prescribed in Paragraph 1, Clause 2, Article 176 of the CPC nears its end (the remaining trial preparation duration does not exceed five days) while the judges assigned to preside over the court sessions deem that the cases are complicated, hence they cannot issue any of the decisions prescribed in this paragraph, they must promptly report such to the court's president for deciding to extend the trial preparation time limits. The trial preparation time limit extension must strictly comply with the provisions in Paragraph 2, Clause 2, Article 176 of the CPC and shall not exceed the time limits guided at Point b, Sub-Section 1.2.1, Section 1, Part I of this Resolution. Upon the expiry of the extended time limits, the judges assigned to preside over the court sessions must issue one of the decisions prescribed in Paragraph 1, Clause 2, Article 176 of the CPC. A case shall be considered being complicated if it falls into one of the following circumstances:

a/ The case involves many accused persons, who have committed offenses in an organized manner or have committed many offenses;

b/ The case relates to many domains or many localities;

c/ The case has many documents, contradictory evidences, thus requiring more time to study and synthesize the documents in the case files or to consult with professional agencies.

2. Regarding Article 177 of the CPC

2.1. Application, change or cancellation of the measure of temporary detention

a/ Application of temporary detention measure means that the court presidents or vice-presidents, at requests of the judges assigned to preside over the court sessions, issue orders to put the accused or defendants into temporary detention in cases where the accused or defendants are not yet put into temporary detention or are being temporarily detained and the temporary detention time limit has already expired, and, based on the provisions in Article 88 of the CPC, deem it necessary to temporarily detain or continue to temporarily detain the accused, defendants.

b/ Change of temporary detention measure means that the court presidents or vice-presidents, at the requests of the judges assigned to preside over the court sessions, issue decisions to replace the temporary detention measure with other deterrent measures in cases where the accused or defendants are being temporarily detained but the continued temporary detention of the accused or defendants is deemed unnecessary and other deterrent measures (ban from leaving their residence places, guarantee, deposit of money or valuable assets as bail) can be applied.

c/ Cancellation of temporary detention measure means that the court presidents or vice-presidents, at the requests of the judges assigned to preside over the court sessions, issue decisions to cancel the temporary detention measure against the accused or defendants in cases the accused or defendants are being temporarily detained but the continued temporary detention of the accused or defendants as well as the application of other deterrent measures are deemed unnecessary.

d/ After deciding to apply, change or cancel the temporary detention measure, the court presidents or vice-presidents, if deeming it necessary, shall still have the right to cancel or re-apply the temporary detention measure.

2.2. Temporary detention duration

According to the provisions in Paragraph 2, Article 177 of the CPC, the time limits of temporary detention for trial preparation must not exceed the trial preparation time limits prescribed in Articles 176 of this Code. Therefore, after receiving the case files, the judges assigned to preside over the court sessions should immediately check the documents in the case files, which are related to the application or non-application of deterrent measures, in order to decide as follows:

a/ For the accused currently being held in temporary detention and the temporary detention time limits near their end (the remaining temporary detention duration does not exceed five days), if deeming it necessary to continue temporarily detaining the accused, to propose the court presidents or vice-presidents to order the temporary detention. The temporary detention time limits in this case shall be counted from the date of reception of the case dossiers and must not exceed forty five days for less serious offenses, two months for serious offenses, two months and fifteen days for very serious offenses and three months and fifteen days for particularly serious offenses.

b/ For the accused currently being held in temporary detention and the temporary detention time limits have not yet expired, when the temporary detention time limits near their end (the remaining temporary detention duration does not exceed five days), to check whether it is necessary to continue with the temporary detention or not. If deeming it necessary to temporarily detain the accused (or defendants, if the decisions to bring the cases to trial have been already issued), to propose the court presidents or vice-presidents to order the temporary detention. The temporary detention time limits in this case shall be counted from the date following the last temporary detention date of the previous temporary detention order, and must not exceed the trial preparation time limits prescribed in Article 176 of the CPC and guided at Point a, Sub-Section 1.2.1, Section 1, Part I of this Resolution minus the durations the accused (or defendants) have been put into temporary detention, counting from the date the courts receive the case files.

Example: On February 1, 2004, the court received the files of a case against the accused A. The accused A was prosecuted by the Procuracy for serious offenses and is being held in temporary detention till the end of February 15, 2004 under the Procuracy's temporary detention order. When the temporary detention time limit under the previous temporary detention order nears its end and it is deemed necessary to continue with the temporary detention of the accused (or defendants, if the decisions to bring the cases to trial have been already issued), to propose the court president or vice-president to order the temporary detention as from February 16, 2004 and the temporary detention time limit must not exceed forty five days (two months being the trial preparation time limit for serious offenses minus fifteen days for which the accused have been temporarily detained under the previous temporary detention order, counting from February 1, 2004 being the date of reception of the case files).

c/ For the accused being out on bail, after the reception of case files or within the time limit for studying the case files, if deeming it necessary to apply the temporary detention measure against them, to propose the court presidents or vice presidents to order the immediate arrest and temporary detention. According to the provisions of Paragraph 2, Article 177 of the CPC, the duration of temporary detention for trial preparation must not exceed the trial preparation time limits prescribed in Article 176 of the CPC and shall be counted from the date the accused were arrested for temporary detention; therefore, in this case, the trial preparation time limits must be calculated under the provisions of Article 176 of the CPC and the guidance at Point a, Sub-Section 1.2.1, Section 1, Part I of this Resolution in order to specifically determine the date the trial preparation time limit expires and to inscribe the temporary detention time limits expires in the "arrest and temporary detention warrants" as follows:

"The temporary detention time limit is counted from the date of arrest for temporary detention to day...... month..... year....." (inscribing the date of expiry of the first-instance trial preparation time limit).

d/ In case of extension of trial preparation time limits, if the temporary detention time limits near their end (the remaining temporary detention duration does not exceed five days) as guided at Points a, b and c of Sub-Section 2.2, Section 2, Part I of this Resolution and deeming it necessary to continue with the temporary detention, the court presidents may order the continued temporary detention. The temporary detention time limits in this case shall not exceed the duration extended for trial preparation prescribed in Paragraph 2, Clause 2, Article 176 of the CPC.

e/ Where many accused in a case are prosecuted for different offenses (less serious offenses, serious offenses, very serious offenses, particularly serious offenses), the temporary detention time limit for each accused must not exceed the trial preparation time limit for the most serious offense for which such accused is prosecuted. If the temporary detention time limits expire as guided at Points a, b, c and d of Sub-Section 2.2, Section 2, Part I of this Resolution and deeming it necessary to continue with the temporary detention in order to complete the trial, to comply with the case of temporary detention for completion of trial as guided in Sub-Section 2.3, Section 2, Part I of this Resolution.

f/ Where the judges assigned to preside over the court sessions issue decisions to stop the cases as provided for in Clause 2, Article 105 and Points 3, 4, 5 and 6 of Article 107 of the CPC or when the Procuracies withdraw the entire prosecution decisions before the court sessions are opened, if the accused are being put in temporary detention, to propose the court presidents or vice-presidents to issue decisions to cancel the temporary detention measure and release the accused if they are not held in detention or custody for other acts of law violation.

2.3. Temporary detention for trial completion

For the accused being held in temporary detention, if the temporary detention time limits have expired on the date the court sessions are opened or in the trial process, before the expiry of the temporary detention time limits (the remaining temporary detention duration does not exceed five days), the judges assigned to preside over the court sessions must propose the court presidents or vice-presidents to order the temporary detention. The temporary detention time limits shall be counted from date following the last temporary detention date of the previous temporary detention order until the end of the court session; concretely, it should be inscribed: " The temporary detention time limit counts from day..... month..... year to the end of the first-instance court session".

3. Regarding Article 178 of the CPC

3.1. The decisions to bring the cases to trial must be clearly and fully inscribed with the contents prescribed in Article 178 of the CPC.

3.2. In order not to have to postpone the court sessions and ensure the compliance with the CPC's provisions in cases where jurors assigned to participate in the adjudication of cases cannot continue participating in the trial after the issuance of the decisions to bring the cases to trial, together with the appointment of official jurors, it is necessary to appoint alternate jurors and to inscribe also the full names of the alternate jurors in the decisions to bring the cases to trial.

4. Regarding Article 179 of the CPC

4.1. Within the trial preparation time limits, the judges assigned to chair the court sessions shall issue decisions to return the case files to the Procuracies for additional investigation in one of the cases prescribed at Points a, b and c, Clause 1, Article 179 of the CPC.

4.2. The decisions to return case files for additional investigation should clearly state which specific files return cases prescribed at Points a, b and c, Clause 1, Article 179 of the CPC and the specific matters to be additionally investigated, but must not state how the additional investigations are significant to the case settlement.

4.3. According to the provisions of Clause 2, Article 121 of the CPC, the decisions to return case files for additional investigation must not be issued more than twice. Therefore, in the course of studying the case files, if detecting matters which need to be additionally investigated, they must keep studying the entire case files to see if there appear any other matters which need to be additionally investigated or not. The decisions to return case files shall be issued for the second time only when the matters requested for additional investigation in the first decisions to return the case files have not been additionally investigated or have been already additionally investigated but the additional investigations fail to meet the requirements or only when it is deemed from the additional investigation results necessary to additionally investigate new matters.

4.4. Serious violation of legal proceedings means the cases where the CPC stipulates that such legal proceedings shall be compulsorily followed, but the procedure-conducting agencies or individuals ignore them or follow them improperly, thus seriously infringing upon the interests of the accused, defendants, victims, civil plaintiffs, civil defendants, persons with rights and interests related to the cases or making the settlement of the cases less objective in all aspects.

Example: Cases prescribed at Points a and b, Clause 2, Article 57 of the CPC where the investigating agencies, the Procuracies or the courts fail to request bar associations to assign the lawyers' offices to appoint lawyers to defend the accused, defendants or fail to request the Vietnam Fatherland Front Committees, the Front's member organizations to appoint defense counsels for members of their organizations constitute the serious violation of the legal proceedings (except where the accused, defendants or their lawful representatives have already invited their own counsels or have rejected the counsels).

II. REGARDING CHAPTER XVIII "GENERAL PROVISIONS ON PROCEDURES AT COURT SESSIONS" OF THE CPC

1. Regarding Article 188 of the CPC

1.1. To ensure the supervision over the defendants at court sessions in strict compliance with the provisions of Article 188 of the CPC, when explaining the rights and obligations of the defendants, the presiding judges should announce the provisions of Article 188 of the CPC to them.

1.2. At court sessions, the temporarily detained defendants may contact their counsels but must strictly observe the court session regulations and submit to the direction of the presiding judges; in cases where they wish to contact other persons, they should clearly state such persons and the reasons therefor. The presiding judges shall so permit only if they deem that the reasons therefor are justifiable.

1.3. Before the Trial Panels take a recess or enter the deliberation rooms for discussion and adoption of decisions, judgments, the presiding judges must comply with the following:

a/ For temporarily detained defendants, they must declare: "To assign the temporarily detained defendants to the escorts for supervision while the Trial Panels recess (or while the Trial Panels enter the deliberation rooms for discussion)".

b/ For defendants not held in temporary detention, they must declare: "The defendants not held in temporary detention must be present when the Trial Panels return to the court rooms. If they are absent without plausible reasons and without permission of the presiding judges, the Trial Panels shall still continue with the adjudication of the cases according to the common procedures or pronounce sentences in the absence of defendants".

2. Regarding Article 196 of the CPC

2.1. The courts may adjudicate defendants under other clauses than those of the same article, under which the Procuracies have made the prosecution, meaning that for acts prosecuted by the Procuracies, the courts may adjudicate defendants under the clauses with penalties heavier or lighter than the penalties stated in the clauses of the same article, under which the Procuracies have made the prosecution.

Example: The Procuracy prosecutes defendant A for five acts of deceitfully appropriating properties under Clause 2, Article 139 of the Penal Code. Under the provisions of Paragraph 2 of Article 196 of the CPC, the court may try defendant A for these five acts of deceitfully appropriating properties under Clause 1 or Clause 3 or possibly Clause 4 of Article 139 of the Penal Code.

2.2. Courts may adjudicate defendants for other offenses equal to or lighter than the offenses for which the Procuracies have made the prosecution, meaning that for acts prosecuted by the Procuracies, the courts may try the defendants for other offenses equal to or lighter than the offenses for which the Procuracies have made the prosecution.

a/ Offenses being equal to the offenses for which the Procuracies have made prosecution mean the cases where the law articles prescribe the penal liabilities (principal penalties, additional penalties) for two identical offenses.

Example: Defendant B is prosecuted by the Procuracy for the offense of "illegal transportation of narcotics," the court may try defendant B for the offense of "illegal storage of narcotics."

b/ Other offenses being lighter than the offenses for which the Procuracies have made the prosecution mean the cases where the law articles prescribe the penal liabilities (principal penalties, additional penalties) for other offenses lighter than the offenses for which the Procuracies have prosecuted the defendants. In order to determine which offenses are less serious and which offenses are more serious, the following order should be followed:

b.1. First of all, to consider the principal penalties for two offenses; either offense subject to the heaviest penalty of higher degree shall be more serious.

Example: For offense of intentionally inflicting injuries on other people (Article 104 of the Penal Code), the law prescribes life imprisonment as the heaviest penalty, while for offense of murder (Article 93 of the Penal Code), the law prescribes death sentence as the heaviest penalty; hence, the offense of murder is more serious than the offense of intentionally inflicting injuries on others.

b.2. Where the law prescribes term imprisonment as the heaviest penalties for both offenses (no death sentence or life imprisonment), either offense subject to the higher penalty shall be the more serious offense.

Example: For offense of causing human deaths while performing the official duties (Article 97 of the Penal Code), the highest imprisonment term prescribed by the law is fifteen years while for the offense of unintentionally causing human deaths due to breach of professional regulations or administrative regulations (Article 99 of the Penal Code), the highest imprisonment term prescribed by the law is twelve years; hence, the offense of causing human deaths while performing official duties is more serious than the offense of unintentionally causing human deaths due to breach of professional regulations or administrative regulations.

b.3. Where the law prescribes death sentence, life imprisonment or same highest term imprisonment as the heaviest penalty for both offenses, the offense with higher starting term imprisonment shall be more serious.

Example: For offense of rape (Article 111 of the Penal Code) and offense of rape against children (Article 112 of the Penal Code), the law prescribes death sentence, life imprisonment and the same highest term imprisonment of 20 years, but the starting term imprisonment for the offense of rape is two years while for the offense of rape against children is seven years; hence, the offense of rape against children is more serious than the offense of rape.

b.4. Where the law prescribes the term imprisonment with the same starting imprisonment level and the same highest imprisonment level as the heaviest penalty for both offenses, the offense for which the law also prescribes other principal penalties which are lighter (non-custody reform, pecuniary fine, caution) shall be the less serious one. If the law prescribes the same penalties but at different highest levels, different starting levels, the determination of more serious offense and less serious offense shall comply with the guidance at Points b.2 and b.3 of Sub-Section 2.2, Section 2, Part II of this Resolution.

b.5. Where the law prescribes the same principal penalties for both offenses, the offense for which the law also prescribes the additional penalties shall be the more serious offense. If the law prescribes the same additional penalties for both offenses, the offense with compulsory additional penalty shall be more serious than the offense with optional additional penalty.

2.3. When the Procuracy prosecutes a defendant for many offenses with different criminal acts, the scope of adjudicating every offense shall comply with the guidance in Sub-Sections 2.1 and 2.2, Section 2, Part II of this Resolution. The court may also try the defendant for the least serious offense among the offenses for which the Procuracy has prosecuted the defendant or for the offense more serious than all the offenses for which the Procuracy prosecutes all such criminal acts.

Example: The Procuracy prosecutes defendant M for five criminal acts, including two acts of plundering properties and three acts of snatching properties, the Court may try defendant M for offense of snatching properties for all the five criminal acts prosecuted by the Procuracy (the offense of snatching properties is less serious than the offense of plundering properties). The Court may also try defendant M for offense of extorting properties for all five criminal acts prosecuted by the Procuracy (the offense of extorting properties is less serious than the offense of snatching properties).

2.4. When handling the cases guided in Sub-Sections 2.1 and 2.3. Section 2, Part II of this Resolution, the CPC's provisions on the adjudicating jurisdiction of the Courts at all levels, on the composition of the Trial Panels and on assurance of the defendants' right to defense should be strictly complied with.

3. Regarding Article 199 of the CPC

The issuance of judgments and decisions by the Courts must comply with the provisions in Article 199 of the CPC; concretely, the judgments, decisions on change of members of the Trial Panels, procurators, court clerks, experts, interpreters, on case transfer, additional investigation request, suspension or cessation of cases, detention or release of defendants must be discussed and adopted at deliberation rooms and recorded in writing. For other cases, the Trial Panels shall discuss and adopt them at the court rooms, without making written records, but they must be recorded in the minutes of the court sessions.

4. Regarding Article 200 of the CPC

4.1. The court session minutes must be inscribed fully with the contents prescribed in Clauses 1 and 2, Article 200 of the CPC. Together with recording the minutes of the court sessions, the Courts may organize the tape-recording and/or video- recording of developments of the court sessions. According to the provisions in Clause 1, Article 200 of the CPC, the court session minutes must record all developments at the court sessions from the opening to the pronouncement of judgments.

4.2. After the court sessions close, the presiding judges must re-examine the minutes and together with the court clerks sign such minutes. When any of the persons defined in Clause 4, Article 200 of the CPC request to see the court session minutes, the presiding judges must permit them to read the court session minutes. If they request the recording of amendments and/or supplements in the court session minutes, the court clerks must inscribe such amendments and/or supplements at their requests. Erasure, deletion of, or correction directly on, the inscribed matters must not be made, but the amendments and/or supplements shall be inscribed in the court session minutes. The full names and procedural capacity or procedural participation capacity of the persons defined in Clause 4, Article 200 of the CPC, who request the inscription of amendments and/or supplements in the court session minutes, shall be inscribed in the minutes; then the matters inscribed in the minutes and requested for amendment and/or supplement as well as specific amendments and/or supplements shall be inscribed therein. If there are many requesters, to inscribe them one by one; then the requesters must sign for certification.

Example 1: (in case of only one requester for inscription of amendments and/or supplements)

Amendments and/or supplements at the request of defendant Nguyen Van A:

1. Regarding the matter inscribed in line (lines) from the top down (or from the bottom up) of page.... of the court session minutes, which is requested for amendment and/or supplement as follows:

...

2. ...

Example 2: (in case of two or more requesters for inscription of amendments and/or supplements)

Amendments and/or supplements:

1. At the request of procurator Tran B:

a. ...

b. ...

2. At the request of victim Le Thi M:

a. ...

b. ...

III. REGARDING CHAPTER XIX "PROCEDURES FOR OPENING COURT SESSIONS"

OF THE CPC

1. Regarding Article 201 of the CPC

1.1. The examination of identities of persons summoned and present at court sessions shall be carried out as follows:

a/ For the defendants, they must be asked to declare their full names; birth dates, birth places; residence places (places of permanent residence registration, places of temporary residence); occupations; educational levels; family circumstances (fathers, mothers, wives or husbands, children); previous convictions, previous violations; date of being held in custody, temporary detention.

b/ For the defendants' lawful representatives, they must be asked to declare their full names; ages, occupations; birth places; residence places; relations with the defendants.

c/ For the victims, civil plaintiffs, civil defendants, persons having interests and obligations related to the cases and their lawful representatives, they must be asked to declare their full names, ages, occupations; places of residence. In cases where the victims, civil plaintiffs, civil defendants, persons having interests and obligations related to the cases are agencies or organizations, the names and headquarters addresses of such agencies or organizations as well as the full names, ages, occupations and residence places of the lawful representatives of such agencies or organizations shall be declared.

1.2. Where the documents in the cases files as well as statements of the summoned persons (particularly defendants) on their identities vary, their identities must be accurately determined. For defendants, apart from their official full names, the full names they have declared in the course of investigation must also be fully inscribed.

Example: Defendant's full name: Nguyen Van A (other names: Nguyen Tran A, Nguyen Van Á...).

If the documents in the case files do not contain adequate grounds for accurate determination of the defendant's identity, to issue decision to return the files for additional investigation.

1.3. Regarding the explanation on the rights and obligations of the persons summoned to court sessions, the presiding judges shall explain fully their rights and obligations prescribed in corresponding articles of the CPC.

Example: To defendants, to fully explain their rights and obligations prescribed in Article 50 of the CPC and at the same time to additionally announce the provisions in Article 188 of the CPC.

To the victims, to fully explain their rights and obligations prescribed in Article 51 of the CPC.

In cases where the persons summoned to court sessions have the same rights and obligations, the explanation shall be made to all of them collectively. For persons having other rights and obligations, to make additional explanation to them.

1.4. For interpreters and experts, the presiding judges shall request them to commit to fulfill their tasks; for witnesses being adults, to request them to commit not to make false statements.

1.5. For defendants, the presiding judges must ask whether they were handed the indictments and decisions to bring their cases to trial or not. If they have already received the decisions to bring their cases to trial, to ask them what are the date of receiving the decisions.

Where defendants have not yet been handed the indictments and decisions to bring their cases to trial or have already received the decisions to bring their cases to trial for nine days or less before the court sessions open, the presiding judges must ask them to see if they agree to let the Courts proceed with the case adjudication or not. If the defendants so agree, to inscribe such in the court session minutes and conduct the trial according to general procedures. If the defendants disagree, the Trial Panels must postpone the court sessions.

Immediately after the court sessions are postponed, if the defendants have not yet been handed the indictments, the Courts shall request the Procuracies to hand the indictments to the defendants; if the defendants have not yet been handed the decisions to bring their cases to trial, the Courts shall proceed with the handing thereof to the defendants.

IV. REGARDING CHAPTER XXII "DELIBERATION AND PROCLAMATION OF JUDGMENTS" OF THE CPC

1. Regarding Article 222 of the CPC

1.1. Only judges and jurors can deliberate. Members of the Trial Panels must settle all matters of the cases by way of majority voting on such matters one by one; concretely including the following matters: are there enough grounds to convict the defendants or not, based on the documents and evidences examined at court sessions as well as on inquiries and arguments at court sessions? If there are enough grounds, what offenses the defendants have committed under which points, clauses, articles of the Penal Code? Principal penalties, additional penalties, judicial measures against the defendants. First-instance criminal court, civil court fees. Proposals to correct mistakes in the managerial work.

1.2. Where a first-instance Trial Panel has only one judge and two jurors, the jurors shall speak (of vote) first, then the presiding judge shall speak (or vote). Where a first-instance Trial Panel has two judges and three jurors, the jurors shall speak (or vote) first, then the judge other than the presiding judge shall speak (or vote) and finally the presiding judge shall speak (or vote).

1.3. The Trial Panel's members holding minority view shall have the right (not the obligation) to present their views in separate documents to be included in the case files.

1.4. The deliberation minutes must be fully inscribed with the ideas already discussed on matters one by one and the majority decision of the Trial Panel on each of such matters. The Trial Panel's members must sign the deliberation minutes at the deliberation rooms before the proclamation of judgments.

2. Regarding Article 224 of the CPC

2.1. The Courts shall pronounce judgments in the name of the Socialist Republic of Vietnam. Such a judgment must include three following parts:

a/ Introduction: This part shall be inscribed fully with the matters prescribed in Clause 2, Article 224 of the CPC.

b/ Content. This part is composed of two following sections:

- The first section is the "realizing that" section which must present criminal acts committed by the defendant prosecuted by the Procuracy; the serial number of the indictment; the date of its issuance; the name of the Procuracy which prosecutes the defendant; the crime, point, clause, article of the Penal Code and the penalty level proposed by the Procuracy to be applied to the defendant. This section shall conclude with the inscription: "After considering and examining documents, evidences at the court sessions, through inquiries and arguments at the court sessions" before moving to the second section.

- The second section is the "seeing that" section which analyzes the accusing evidences and justifying evidences of the acts for which the Procuracy has prosecuted the defendant; if the defendant is determined as having committed crimes, what are they and such crimes are prescribed by which points, clauses, articles of the Penal Code; the aggravating circumstances, extenuating circumstances, the penal liability of the defendant and the handling direction. If the defendant is not pleaded guilty, the grounds therefor must be clearly inscribed, and their honor, legitimate rights and interests must be restored.

c/ The decision. This part must be inscribed with the court's decisions. If the defendant is pleaded guilty, it must states which crimes are committed by the defendant, the application of points, clauses, articles of the Penal Code to penalize the defendant and the specific penalty; judicial measures; first-instance criminal and civil court fees. Finally, it states the right to appeal against the judgment.

2.2. Together with the deliberation minutes, the originals of the judgments must be adopted and signed at the deliberation chambers by the members of the Trial Panels and kept in the case files. On the basis of the originals of the judgments, the presiding judges shall sign on behalf of the Trial Panels the principal copies of the judgments and the Courts shall hand the judgments according to the provisions in Article 229 of the CPC.

3. Regarding Article 226 of the CPC

3.1. Under the provisions in Article 226 of the CPC, when judgments are pronounced, all people in the court rooms must rise up; therefore, before the judgments are pronounced, the court clerks must request all people to rise up, except for persons who cannot rise up for health reasons, and are allowed by the presiding judges to sit. The presiding judge or another member of the Trial Panel shall read the judgment; if the judgment is long, they may take turn to read it.

3.2. Where a judgment is too long, the presiding judge may request all people in the court room to rise only when the introduction part and the decision part of the judgment are read.

3.3. After finishing the reading of the judgment, depending on every specific case, the presiding judge or another member of the trial panel shall additionally explain the execution of the judgment and the right to appeal.

Example: - If the court hands down the suspended sentence to a defendant, he/she may be further explained about the provisions in Clauses 4 and 5, Article 60 of the Penal Code.

- If the court sentences a defendant with non-custody reform, he/she may be further explained about the provisions in Clause 2, Article 51 of the Penal Code.

3.4. For defendants who do not know Vietnamese, immediately after the judgments are pronounced, the interpreters must interpret the entire judgments into the languages the defendant know. The judgments prescribed in Paragraph 2, Article 226 of the CPC should be understood and the judgments related to the defendants who do not know Vietnamese, meaning the interpreters shall have to read to the defendants the entire judgment sections related to the defendants who do not know Vietnamese.

4. Regarding Article 228 of the CPC

4.1. For defendants being held in temporary detention, who are sentenced to imprisonment and do not fall into the cases prescribed in Clauses 4 and 5, Article 227 of the CPC, but the temporary detention time limits expire on the dates when the court sessions end, the Trial Panels shall issue decisions to temporarily detain the defendants in order to ensure the judgment execution.

Apart from the cases the temporary detention time limits have actually expired on the dates the court sessions end (example: cases where the court presidents or vice-presidents issue warrants on temporary detention until the conclusion of the court sessions to complete the adjudication), the cases that the remaining temporary detention durations are not enough for carrying out subsequent procedural activities (protest, appeal, issuance of decisions on execution of imprisonment sentences under the provisions in Clause 1, Article 234 and Clause 1 Article 256 of the CPC) shall be also considered that the temporary detention time limits have already expired.

In order to ensure the lawful temporary detention of defendants (with temporary detention warrants), it is necessary to distinguish the following:

a/ If the imprisonment duration remains for 45 (forty five) days or more, the temporary detention time limit shall be inscribed as being 45 (forty five) days as from the date of pronouncing the judgment;

b/ If the imprisonment duration remains for less than 45 (forty five) days, the temporary detention time limit shall be inscribed as being equal to the imprisonment duration counting from the date of pronouncing the judgment and inscribed additionally with: "at the end of this temporary detention duration, the temporary detention camps shall have to immediately release the defendants, if they are not held in custody or detention for other acts of law offenses."

4.2. For temporarily detained defendants who are sentenced to death. the judgments must be inscribed with: "to continuing detaining the defendants to ensure the judgment execution" without having to issue the temporary detention decisions.

5. Regarding Article 229 of the CPC

5.1. The handing and sending of judgments and written notices on adjudicating results must comply with the provisions in Paragraph 1, Article 229 of the CPC.

5.2. For defendants tried in absentia, if being unable to directly hand the judgments, decisions to them, the courts shall, together the sending of judgments to them, have to post up the judgments at the offices of the administrations of the communes, wards or district townships where the defendants last reside or work. The posting up must be recorded in writing with the certification of the administrations of the communes, wards, district townships where the defendants last reside or the agencies or organizations where the defendants last work and be included in the case files.

V. FORMS OF PROCEDURAL DOCUMENTS

Issued together with this Resolution are the following procedural documents forms (not printed herein):

1. The decision on return of files for additional investigation (Form No. 04a: to be used by the judges assigned to preside over the court sessions);

2. The decision on case suspension (Form No. 04b: to be used by the judges assigned to preside over the court sessions);

3. The decision on case cessation (Form No. 04c: to be used by the judges assigned to preside over the court sessions);

4. The decision to bring to case to trial (Form No. 04d: to be used by the judges assigned to preside over court sessions.

5. The decision to extend the trial preparation time limits (Form No. 04e: to be used by presidents of the first-instance courts;

6. The decision to request additional investigation (Form No. 05a: to be used by the first-instance Trial Panels);

7. The decision on case suspension (Form No. 05b: to be used by the first-instance Trial Panels;

8. The decision on case cessation (Form No. 05c: to be used by the first-instance Trial Panels);

9. The deliberation minutes (Form 05d: to be used by the first-instance Trial Panels);

10. The decision on release of defendant (Form No. 05e: to be used by the first-instance Trial Panels);

11. The minutes of the first-instance criminal court sessions;

12. The first-instance criminal judgment.

VI. IMPLEMENTATION EFFECT OF THE RESOLUTION

This Resolution was passed on November 5, 2004 by the Judges' Council of the Supreme People's Court and takes effect 15 days after its publication in the Official Gazette.

On behalf of the Judges' Council

of the Supreme People's Court

President
NGUYEN VAN HIEN